Snape v Gibson; Re Estate of Paul Francis Snape

[2006] NSWSC 829

CITATION:	Snape v Gibson Re Estate of Paul Francis Snape [2006] NSWSC 829
HEARING DATE(S):	14 August 2006
JUDGMENT DATE :	14 August 2006
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Document admitted under s18A of the Wills Probate and Administration Act 1898
CATCHWORDS:	WILLS - informal wills - whether document signed by deceased but not witnessed should be admitted to Probate
LEGISLATION CITED:	Wills Probate and Administration Act 1898, s18A
PARTIES:	Dianne Kerry Snape (Plaintiff) Bronwyn Rose Gibson (First Defendant) Dean Garry Snape (Second Defendant)
FILE NUMBER(S):	SC 104050 of 2006; 1876 of 2006
COUNSEL:	Mr C F Hodgson (Plaintiff) Mr J Priestley (Defendants)
SOLICITORS:	Bondfield Riley (Plaintiff) James Fuggle (Defendants)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

WINDEYER J

MONDAY 14 AUGUST 2006

104050/06 & 1876/06 DIANNE KERRY SNAPE v BRONWYN ROSE GIBSON & ANOR - THE ESTATE OF PAUL FRANCIS SNAPE

JUDGMENT

1 HIS HONOUR: In this matter the plaintiff seeks to propound a document as entitled to be admitted to probate under s18A of the Wills Probate and Administration Act 1898. That document is in the following terms: “I, Paul Snape leave everything, property, goods, et cetera, to my wife, Dianne Snape.” Underneath that appears the signature of the deceased with his name printed beside the signature and the date 16 September 2004.

2 Mr Snape died on 17 September 2004. He was married to the plaintiff in 1995 but had lived in a de facto relationship with her for many years before that date. He made a will on 16 December 1999 under which he appointed Mr Alan Winley Hoskings and Dorothy Denise Hoskings as executors and after making some relatively small gifts gave the residue of his estate equally to his children who survived him other than his son Graham Paul Snape. He gave reasons for excluding that son.

3 He had made an earlier will but that is not relevant other than to show that he was used to making wills and so far as can be gleaned from that understood the procedures and the requirements for valid wills to be witnessed. It is not suggested that apart from his son Graham, the defendants to these proceedings are not persons whom the deceased should have had in contemplation at the time that he was considering the disposition of his estate.

4 To a large extent the estate of the deceased is represented by real estate at Rosebank in New South Wales. The evidence shows the history of the properties so far as relevant and it is clear the they had been in the deceased’s family for some time. No more needs to be said about that other than to accept the evidence of conversations of the deceased with his children in which he indicated that they would inherit the properties in due course.

5 According to the plaintiff, she did not know of the 1999 will until she received a copy of it the day after the death of her husband. She said that the deceased had said on occasions that he did not like solicitors and that he did not like doctors. The fact is, however, that whether he liked them or not he was in the habit of using their services and, particularly, in the habit of using the services of Messrs Rummery Solicitors of Lismore. According to the plaintiff, she and the deceased had said to each other during a period of eighteen months before his death, “We need to make wills”. She said that about six months prior to his death the deceased had said to her, “I want you to be the executor of my will. I want to leave everything that I own to you. I want there to be provision in my will that if you die that everything will be left between all our children but not Graham.” By “all our children” I take it to mean all of the deceased’s children and all of the children of his wife, they both having had separate families before entering into their relationship.

6 The plaintiff also said that at about that time when the deceased was suffering from high blood pressure and poor general health he said, “I want to make a will. I hate using solicitors, we should use will kits.” No will kit was ever purchased.

7 On 16 September 2004 when the plaintiff went to work, the deceased seemed well enough. They discussed going to Lismore the next day and they spoke about how they should each make wills. It is not clear at all that in this conversation it was suggested that they would be making their wills in Lismore the next day.

8 During the day of 16 September, the deceased spoke to his wife and said that there were people cutting down trees on the property and later on in the afternoon he telephoned her again and said that he was not feeling well and asked her to come home immediately. When she got home he said that he was still not feeling well but when she asked whether he wanted the doctor or the hospital he said, “Please don’t ring the doctor or hospital”. Later on, the deceased said to his wife that he had not been feeling well and had spent most of the day lying down. In the evening he went to sleep. They woke up at about 6am. The plaintiff went to make a cup of coffee for the deceased and returned with it. Later on she left to go back to the kitchen. He got up and went to the toilet. She heard a bang. The deceased was slumped on the floor and she and her daughter, who arrived at the house at her request, managed to get the deceased out but by this time he was dead.

9 The document in question was found by the plaintiff when she was going through the deceased’s wallet looking for membership details of various clubs to see whether some funeral benefit was available to her husband. She said that he always kept his wallet in the drawer and only removed it when he was going out. She found the piece of paper and read it. She said it looked fresh. She unfolded it and saw what it was. She took it to her solicitor in Lismore.

10 For a document to be admitted to probate under s18A of the Wills Probate and Administration Act there are three requirements. The first is that there is a document. The second is that the document embodies the testamentary intentions of the deceased. The third is that the deceased intended that document without more to be his will.

11 The question is whether all of those requirements are made out in this case. So that there is no undue suspense I state now that I have come to the conclusion that they have been. There is, of course, no doubt that there is a document. There is no doubt that on its face it appears to embody the testamentary intentions of the deceased. The question is whether the deceased intended it to operate as his will. These matters are all difficult, which is the reason why I decided to reserve my decision over lunch to consider the matter more carefully.

12 It is put against the document complying with the requirements of s18A, that there was no publicity given to the document and the deceased did not tell his wife that he made a will in her favour. That, I think, is the strongest matter which could be put against the deceased intending this document to be his will. There is some force in it, particularly as he and his wife had been discussing wills and he could have, of course, easily said to her, particularly as he was apparently feeling very ill, that he had made a will and that it was in his wallet. As against that, however, the document is relatively formal in its terms. It is not a document such as a document which appears to be instructions for a will to be drawn up. If it were like that it would be something like “Leave everything to my wife”. Here, however, it commences, “I, Paul Snape” and ends with the words “Dianne Snape”. None of that would have been likely to have been put there if it was just a document setting out what at that time was the intention, but which was not intended to take effect at that time.

13 Also, the signing of the document, the printing of the name beside it, and the date of the document all give support to the conclusion that the deceased did intend this document to operate upon its terms and that he intended it to be effective without more. The fact that he was certainly feeling very ill on the date on which the document was written out lends support to that conclusion.

14 For those reasons, I consider that the document should be admitted to probate and I will make the necessary orders for that.

15 I make the declaration sought in paragraph 1 of the further amended summons.

16 I order the matter be referred to the Registrar to make any grant. The exhibits other than Exhibit A can be returned.

17 The costs of all parties are to be paid out of the estate of the deceased, those of the plaintiff on the indemnity basis.

18 I order that paragraphs (a), (b), (c) and (d) of the cross-claim be dismissed. I order the claim in paragraph (f) of the cross-claim for provision under the Family Provision Act 1982 be transferred to the general Equity list.

19 I order those proceedings and proceedings in Equity file number 1876/06 be stood over to the Registrar’s list on 28 August 2006.

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